Opinion
W.C. No. 3-107-326
November 19, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ), granting the respondents' motion to suspend temporary total disability benefits. We affirm.
The facts in this case are undisputed. The claimant sustained a compensable injury in February 1993. The respondents paid temporary total disability benefits from February 5, 1993 through December 14, 1993. Ultimately, it was determined that the claimant sustained a twenty-one percent whole person medical impairment, and the respondents were ordered to pay $41,680 in permanent partial disability benefits. The claimant recovered this award in a lump sum.
In November 1996, the claimant petitioned to reopen alleging that his condition was worse. The respondents voluntarily reopened the claim in February 1997, and commenced payment of temporary total disability benefits effective October 16, 1996.
In March 1997, the respondents filed a petition to suspend payment of temporary disability benefits. The basis of the petition was that they had paid a total of $69,263.58 in combined temporary total and permanent partial disability benefits. Consequently, the respondents argued that their payments to the claimant exceeded the $60,000 cap for cases involving impairments of twenty-five percent or less. See § 8-42-107.5, C.R.S. 1997. Under these circumstances, the respondents argued that they are entitled to a credit for the permanent partial disability benefits previously paid, and that temporary disability benefits should be suspended until the credit is recovered. See Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo.App. 1995).
The ALJ determined that there are no material issues of fact, and entered an order without conducting a hearing. Relying on Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office, supra, the ALJ determined that the respondents are entitled to suspend the payment of temporary total disability benefits until they recover an amount equal to the permanent partial disability benefits paid prior to the reopening.
I.
On review, the claimant contends that the ALJ erred in applying the principles announced in Murphy to the facts of this claim. Specifically, the claimant asserts that, because this case involved a reopening, the ALJ's order affects an "earlier award as to moneys already paid" in violation of § 8-43-303(1), C.R.S. (1996 Cum. Supp.) [amended in 1997 with respect to injuries occurring on or after July 1, 1997]. The respondents also argue that Murphy is inapposite because it did not involve an actual reopening. We are not persuaded.
In Murphy, the claimant received $31,508 in permanent partial disability benefits. In combination with temporary disability benefits paid, the total payments reached the $60,000 cap set forth in § 8-42-107.5. Nevertheless, the claimant sought additional temporary disability benefits after his "condition worsened and his treating physician determined that another surgery was appropriate."
Under these circumstances, the Murphy court concluded that application of the cap was premature because the claimant had not reached maximum medical improvement (MMI) due to the worsening of his condition, and his permanent impairment could not be determined. Nevertheless, the court concluded that the respondents were entitled to offset the previously paid permanent partial disability benefits against their additional liability for temporary total disability benefits. In so doing, the court conceded that neither § 8-42-107.5, nor § 8-43-303, "addresses this situation of further temporary total disability benefits being awarded after the limit on combined temporary total and permanent partial benefits has been paid." However, the court concluded that the credit was appropriate in order to effectuate the "goal of the statutory limit on combined temporary total and permanent partial benefits when the claim is pursued following payment under the provisions of the statute." 916 P.2d at 614. The court stated that allowing the credit maintains incentives to employers and insurers to settle and provide permanent partial benefits, and avoids the need for "further proceedings to seek recovery of overpayment." Moreover, the court pointed out that the claimant could obtain additional benefits if, after attaining MMI, he has a permanent impairment rating in excess of twenty-five percent.
The claimant's contention notwithstanding, we do not understand the Murphy decision as turning on any distinction between cases where the claimant seeks additional temporary disability benefits after reopening, and cases where the claim for benefits is not technically closed. To the contrary, the court's reasons for fashioning the credit apply regardless of whether there is an actual reopening, or a mere claim for additional temporary disability after an initial award of permanent disability benefits. In either scenario, the respondents are subjected to the potential of a large, unrecoverable overpayment if it is ultimately determined that the claimant's medical impairment rating is twenty-five percent or less, and the respondents have been required to pay ongoing temporary disability benefits pending a new date of MMI. Further, in both scenarios the claimant is entitled to recover additional benefits should the impairment rating exceed twenty-five percent.
We also disagree with the claimant's assertion that the ALJ's order affects "moneys already paid" within the meaning of § 8-43-303(1). As stated in Kuziel v. Pet Fair, Inc., ___ P.2d ___, (Colo.App. No. 97CA0087, September 4, 1997), "a subsequent award will affect an earlier award as to moneys already paid only if the claimant is required actually to pay back moneys from the initial award." See also Cody v. Industrial Claim Appeals Office, 940 P.2d 1042 (Colo.App. 1996). Moreover, one of the purposes of reopening is to permit "an equitable adjustment to the award to reflect" changed circumstances. Kuziel v. Pet Fair, Inc., supra.
Here, the claimant was not ordered to repay any moneys received as a result of the initial award. The ALJ merely determined that the claimant's right to temporary disability benefits must be suspended in order to effectuate the statutory objectives identified by the court in the Murphy decision. As such, the order reflects the type of "equitable" adjustment of benefits contemplated by the reopening statute.
II.
The claimant next contends that the ALJ should hold a hearing to determine the rate at which the respondents are obligated to pay temporary disability benefits. The claimant asserts he could present evidence proving that a one hundred percent reduction is unfair. In support, the claimant relies on authority which holds that ALJs have discretionary authority to set the rate at which respondents recover overpayments. Eg. Louisiana Pacific Corp. v. Smith, 881 P.2d 456 (Colo.App. 1994). We disagree.
The Murphy court did not hold that the credit, which it judicially created, is subject to the discretionary authority of ALJs to diminish the rate of recovery. If the Murphy court intended such discretion, it presumably would have remanded the case for a hearing on the rate of recovery. However, the Murphy court's order specifically stated that our order was "set aside and the cause is remanded with instructions to grant petitioners a credit for permanent partial disability benefits already paid against temporary total disability benefits."
Thus, we construe the Murphy decision as evidencing the court's conclusion that the purposes underlying § 8-42-107.5 mandate a full credit until the permanent partial disability benefits previously paid have been exhausted. Furthermore, we lack authority to interfere with the court's published decision concerning the remedy to be granted in these circumstances. C.A.R. 35 (f).
IT IS THEREFORE ORDERED that the ALJ's order dated July 15, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed November 19, 1997 to the following parties:
Bruce Seagrave, P.O. Box 503, Dove Creek, CO 81324
Eugene Sanders, P.O. Box 605, Dove Creek, CO 81324-0605
Colorado Compensation Insurance Authority, Attn: Brandee DeFalco-Galvin, Esq. (Interagency Mail) (For the Respondents)
Kendra Oyen, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506
Robert C. Dawes, Esq., 572 E. Third Ave., Durango, CO 81301 (For the Claimant)
By: __________________________